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Billy H. v. Saul

United States District Court, W.D. Virginia, Roanoke Division

September 30, 2019

BILLY H., Plaintiff
ANDREW SAUL, Commissioner of Social Security, Defendant


          Michael F. Urbanski, Chief United States District Judge.

         This social security disability appeal was referred to the Honorable Robert S. Ballou, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed findings of fact and a recommended disposition. The magistrate judge filed a report and recommendation (R&R) on August 15, 2019, recommending that the plaintiffs motion for summary judgment be denied, the Commissioner's motion for summary judgment be granted, and the Commissioner's final decision be affirmed. Plaintiff Billy H. ("Billy") filed objections to the report to which the Commissioner responded, and this matter is now ripe for the court's consideration.

         I. Standard of Review of Magistrate Judge Decision

         The objection requirement set forth in Rule 72(b) of the Federal Rules of Civil Procedure[1] is designed to "train[ ] the attention of both the district court and the court of appeals upon only those issues that remain in dispute after the magistrate judge has made findings and recommendations." United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007) (citing Thomas v. Arn, 474 U.S. 140, 147-48 (1985)). An objecting party must do so "with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." Id. at 622.

To conclude otherwise would defeat the purpose of requiring objections. We would be permitting a party to appeal any issue that was before the magistrate judge, regardless of the nature and scope of objections made to the magistrate judge's report. Either the district court would then have to review every issue in the magistrate judge's proposed findings and recommendations or courts of appeals would be required to review issues that the district court never considered. In either case, judicial resources would be wasted and the district court's effectiveness based on help from magistrate judges would be undermined.


         The district court must determine de novo any portion of the magistrate judge's report and recommendation to which a proper objection has been made. "The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. § 636(b)(1).

         If, however, a party '"makes general or conclusory objections that do not direct the court to a specific error in the magistrate judge's proposed findings and recommendations, '" de novo review is not required. Diprospero v. Colvin, No. 5:13-cv-00088-FDW-DSC, 2014 WL 1669806, at *l (W.D. N.C. 2014) (quoting Howard Yellow Cabs. Inc. v. United States. 987 F.Supp. 469, 474 (W.D. N.C. 1997) (quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982))). "The court will not consider those objections by the plaintiff that are merely conclusory or attempt to object to the entirety of the Report, without focusing the court's attention on specific errors therein." Camper v. Comm'r of Soc. Sec. No. 4:08cv69, 2009 WL 9044111, at *2 (E.D. Va. 2009), aff'd, 373 F.App'x 346 (4th Cir. 2010); see Midgette, 478 F.3d at 621 ("Section 636(b)(1) does not countenance a form of generalized objection to cover all issues addressed by the magistrate judge; it contemplates that a party's objection to a magistrate judge's report be specific and particularized, as the statute directs the district court to review only 'those portions of the report or specified proposed findings or recommendations to which objection is made."'). Such general objections "have the same effect as a failure to object, or as a waiver of such objection." Moon v. BWX Technologies, 742 F.Supp.2d 827, 829 (W.D. Va. 2010), aff'd, 498 F.App'x 268 (4th Cir. 2012). See also Arn, 474 U.S. at 154 ("[T]he statute does not require the judge to review an issue de novo if no objections are filed. . . .").

         Rehashing arguments raised before the magistrate judge does not comply with the requirement set forth in the Federal Rules of Civil Procedure to file specific objections. Indeed, objections that simply reiterate arguments raised before the magistrate judge are considered to be general objections to the entirety of the report and recommendation. See Veney v. Astrue, 539 F.Supp.2d 841, 844-45 (W.D. Va. 2008). As the court noted in Veney:

Allowing a litigant to obtain de novo review of her entire case by merely reformatting an earlier brief as an objection "mak[es] the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act." Howard [v. Sec'y of Health & Human Servs.], 932 F.2d [505, ] 0 509 [(6th Cir. 1991)].

Veney, 539 F.Supp.2d at 846. A plaintiff who reiterates his previously-raised arguments will not be given "the second bite at the apple [he] seeks;" instead, his re-filed brief will be treated as a general objection, which has the same effect as would a failure to object. Id.

         II. Judicial Review of Social Security Determinations

         It is not the province of a federal court to make administrative disability decisions. Rather, judicial review of disability cases is limited to determining whether substantial evidence supports the Commissioner's conclusion that the plaintiff failed to meet his burden of proving disability. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). In so doing, the court may neither undertake a de novo review of the Commissioner's decision nor re-weigh the evidence of record. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). Evidence is substantial when, considering the record as a whole, it might be deemed adequate to support a conclusion by a reasonable mind, Richardson v. Perales, 402 U.S. 389, 401 (1971), or when it would be sufficient to refuse a directed verdict in a jury trial. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).

         Substantial evidence is not a "large or considerable amount of evidence, " Pierce v. Underwood, 487 U.S. 552, 565 (1988), but is more than a mere scintilla and somewhat less than a preponderance. Perales. 402 U.S. at 401; Laws. 368 F.2d at 642. "It means-and means only-'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek v. Berryhill, 139 S.Ct. 1148 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). If the Commissioner's decision is supported by substantial evidence, it must be affirmed. 42 U.S.C. § 405(g); Perales, 402 U.S. at 401.

         III. The Administrative Law Judge ("ALJ") Decision[2]

         Billy, born on September 15, 1981, suffered a traumatic head injury when he was hit by a car at nine years old. Following the head injury, he was noted to have variable moods ranging quickly from happiness to anger. It was also noted at the time that he went from being an average student to needing special education services for academic and behavioral support.

         On July 5, 2013, Billy applied for disability benefits for three different periods in his life. He sought child's disability insurance benefits ("CDB") for the period of September 15, 1999 through September 15, 2003 (his 18th through 22nd birthdays). He sought disability insurance benefits ("DIB") for the period of July 1, 2003 through March 2013 (his date first insured through his date last insured); and supplemental security income (SSI) for the period of June 12, 2013 through May 19, 2017 (his protective filing date through the date of the ALJ's decision). R. 16, 239-261.

         The ALJ applied the five-step sequential evaluation, set out in 20 C.F.R. §§ 404.1520(a) and 416.920(a), to each period of disability.[3] With regard to Billy's claims for CDB and DIB, the ALJ found him not disabled at Step 1 because he had engaged in substantial gainful activity during the relevant time periods. Then, "to be thorough, " the ALJ also addressed the evidence related to Step 2. R. 16-17.

         Regarding Billy's claim for SSI, where Billy would need to establish that he was disabled between June 12, 2013 and May 19, 2017, the ALJ found that Billy had severe impairments of major depressive disorder, panic disorder, mood disorder, and alcohol abuse in remission, but that none of his impairments met or equaled a listed impairment. At Step 4 of the evaluation, the ALJ found that Billy had the RFC to do a full range of work at all exertional levels, but with the nonexertional limitations of being limited to unskilled work that is low stress, defined as only occasional decision-making and only occasional changes in the work setting. He could have no interaction with the public and only occasional interaction with coworkers and supervisors in jobs that require no more than occasional simple communication. Based on the testimony of the vocational expert at the hearing, the ALJ then found that Billy could do the jobs of dishwasher, folder, and label maker, all of which exist in significant numbers in the national economy. Thus, the ALJ concluded that Billy is not disabled.

         Billy argued to the magistrate judge that determinations by the ALJ at various stages of the evaluation were not supported by substantial evidence. The magistrate judge found that the ALJ opinion was supported by substantial evidence in all respects. These objections followed.

         IV. Objections

         Billy objects to the following findings by the magistrate judge: (1) that the ALJ properly concluded that Billy was engaged in substantial gainful activity ("SGA") from 2004 to 2006; (2) that the ALJ properly determined that Billy did not have any severe impairments from September 1999 through March 2013; (3) that the ALJ gave proper weight to the opinions of consultative psychologist Dr. Luckett and consultative neuropsychologist Dr. Sollinger; (4) that the ALJ properly assessed Billy's subjective complaints of his impairments; and (5) that the ALJ adequately explained why his mental residual functional capacity ("RFC") evaluation accommodates Billy's moderate limitation in concentration, persistence, and pace and his moderate limitations in interacting with others.

         A. Substantial ...

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